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Loose v. General Dynamics Corp.

United States District Court, E.D. Virginia, Alexandria Division

November 18, 2019

DAVID LOOSE, Plaintiff,


          Anthony J. Trenge United States District Judge.

         Following its acquisition by General Dynamics Corporation ("GDC"), effective April 3, 2018, Defendant CSRA Inc. ("CSRA") became operationally integrated into General Dynamics Information Technology, Inc. ("GDIT"), a business unit within GDC; and on May 4, 2018, Plaintiff David Loose, who had been employed as CSRA's Treasurer, was terminated from his employment. In this action, he alleges that (1) he was terminated from his employment because of his age in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-34 (the "ADEA") (Count I); and (2) GDIT did not hire him because of his age, also in violation of the ADEA (Count II). [Doc. No. 1], Complaint, at 11-16. He seeks front pay and back pay, benefits, pecuniary losses, pre-judgment interest, and post-judgment interest, liquidated damages, compensatory damages, attorneys' fees and costs, injunctive relief, and equitable relief. Id.

         Presently pending is Defendants' Motion for Summary Judgment [Doc. No. 127].[1] The Court held a hearing on the Motion on October 17, 2019, following which it took the Motion under advisement. For the reasons stated below, the evidence is insufficient as a matter of law to establish that either Defendant discriminated against Plaintiff because of his age in violation of the ADLA; and Defendants are therefore entitled to judgment in their favor as a matter of law. Defendants' Motion for Summary Judgment is therefore GRANTED.

         I. BACKGROUND

         The facts below are undisputed, unless otherwise noted. [2]

         David Loose is the former Treasurer of CSRA. Prior to its acquisition by GDC in 2018. CSRA was a publicly traded company. Loose was born on I I and was 58 years old at the time of the alleged discrimination. He worked for CSRA from 2016 until his termination on May 4, 2018. At the time the acquisition w:as announced. Loose reported to David Keffer, CSRA's Chief Financial Officer.

         On February 9, 2018, GDC announced the acquisition of CSRA. That acquisition closed on April 3. 2018. As a result of that acquisition. CSRA's operations were merged into GDIT. a then-existing business unit of GDC, resulting in the elimination of a number of CSRA positions. One of those positions was Loose's position as CSRA Treasurer, because GDC. a global publicly traded company, maintained a Treasury Department, headed by David Fogg, and GDIT did not have a separate Treasury Department, or Treasurer, or position comparable to Loose's Treasurer position at CSRA. The need for CSRA's Treasury department, as such, was therefore eliminated, with those finance related tasks not performed in GDC's Treasury Department transferred to a variety of employees within "the new GDIT." Following the announcement of the acquisition in February 2018, Loose began efforts to locate a position outside of GDC. In his communications with his own business contacts in connection with those efforts, Loose expressed his belief that he would be losing his job once the acquisition closed, that he would need to stay with CSRA until the acquisition closed, but that as CSRA's corporate treasurer, it was very unlikely that he would have a position with GDIT. See SUMF ¶ 8.

         Nevertheless, following the announcement, Loose also explored opportunities within GDC. In that regard, CSRA told its employees that, "If you're interested in a new opportunity, we encourage you to talk to your manager. In addition, reach out to CSRA's Talent Mobility team..... As we proceed through the integration planning process we will learn more about what positions will exist within the new company. Then we can offer a process to employees to access career opportunities across our broad platform." [Doc. No. 144-10], at 6. Following these instructions, Loose recalls telling Keffer, his manager within CSRA, that he was interested in a job at GDIT and giving him his resume. [Doc. No. 144-6], Deposition of David Loose ("Loose Dep."), at 33:5-8. Loose also recalls that Keffer told him that Keffer gave his resume to Alison Harbrecht, GDIT Chief Financial Officer, who had been selected, rather than Keffer, to be the Chief Financial Officer of the new GDIT, and that he was recommending him for various roles. Id. at 25:5-13. Loose also recalls that in response to asking Keffer whether he should contact Harbrecht directly, Keffer advised him "no, and that he was 'on the case.'" Id. at 78:6-9. Keffer testified that he does not recall ever sending Loose's resume to Harbrecht or letting her know that Loose was interested in finance positions generally within GDIT. [Doc. No. 144-7], Deposition of David Keffer, at 175:19-176:6.

         Following his conversations with Keffer, Loose never heard from Harbrecht about an interview or being considered for any jobs within GDIT. Nevertheless, Loose never sent his resume to or contacted Harbrecht about a job with GDIT. On February 14, 2018, he did, however, send his resume to David Breen, GDIT Vice President of Human Resources, with a note that he "hope[d] that [he] may be fortunate enough to have a role at GD going forward." [Doc. No. 144-21]. Breen testified that he never spoke to anyone at GDIT about Loose's interest in a position.

         Following the announcement of CSRA's acquisition, Harbrecht, as the newly appointed CFO for the new GDIT, was tasked with determining the structure of the Finance Division within the new GDIT, including which roles would be eliminated. See Complaint, ¶ 30. In that regard, she identified six positions that would report directly to her in the "New GDIT." SUMF ¶ 22. For those positions, she then identified, interviewed, and considered those CSRA and GDIT employees who were currently performing the functions associated with those positions. SUMF ¶ 23.

         On March 1, 2018, Harbrecht had a telephone call with Keffer to discuss individuals in his finance organization. SUMF ¶ 9. Keffer sent her his organization chart to facilitate the discussion. According to Harbrecht's notes, she identified three CSRA employees who were performing roles that were no longer needed.[3] See SUMF ¶ 9. With regards to Loose, Harbrecht's notes state that it was "very important to get him with [GDC] Treasury very soon," and she reminded herself to "Talk to Dave [Fogg, GDC Treasurer] and Bola [Otitoju]," who was a member of the GDC Treasury department, SUMF ¶ 9, and she later emailed Keffer that she had given "the [GDC] Treasurer, Dave Fogg, a heads up that David Loose would be contacting him." SUMF ¶ 10. Keffer responded that he would "put Dave Fogg in touch with David Loose," which Keffer later did. SUMF ¶ 10, 29.

         On March 6, 2018, Harbrecht spoke with Keffer again about his direct reports and took notes; her only question about Loose was "Keep for how long?" and she noted that she would "Take the lead from Dave Fogg [GDC Treasurer] on how long to keep." SUMF ¶ 11.

         On March 8, 2018, Keffer sent Harbrecht a list of "Day 1 redundancies" and "all near-term reductions" based on their discussions. SUMF ¶ 12. Loose was identified as one of the "Early cost synergies" with a termination date "TBD." The only remaining action regarding Loose was to "Finalize term decision (and date)." SUMF ¶ 12.

         On March 9, 2018, Loose met with Fogg to discuss CSRA Treasury issues. SUMF ¶ 30. In advance of this meeting, Loose emailed his resume to Fogg and explained he wanted to discuss how long the CSRA Treasury team would need to stay in place during the integration, as well as whether GDC had any permanent positions for Loose's team. See SUMF ¶ 30; Disputed Facts ¶ 30. At the meeting, Fogg informed Loose that there were no vacancies in GDC's Treasury department, and that if he was interested in a job with GDIT, he would need to "work through" Harbrecht. [Doc. No. 128-34], Pl.'s Corrected Responses to Defendant GDIT's First Set of Interrogatories No. 13 ("Mr. Fogg was clear that I would have to work through Alison Harbrecht, regarding GDIT positions."). Plaintiff recalls that Fogg told him that he would touch base with Harbrecht to see if there were any positions for Loose at GDIT, and that Fogg later informed him that Harbrecht said there were no roles left. Disputed Facts ¶ 31. On March 12, 2018, Loose emailed the resumes of his direct reports to Fogg with a request for assistance in finding them roles at GDC. SUMF ¶ 32.

         On March 20, 2018, Harbrecht informed Human Resources that Loose and the CSRA Treasury department would be terminated "likely in the first 30-90 days" after the acquisition was complete, but that their "departure dates are being coordinated with [GDC] Treasury." SUMF ¶ 14. Throughout this time period, Loose expressed his understanding that there were "no roles for any of [his] people" unless Harbrecht "pull[ed] jobs out of a hat." SUMF ¶ 15.

         By on or before April 2, 2018, Harbrecht had identified the individuals she selected to fill six of the seven direct report positions, leaving to be filled only the position of GDIT Intel Division Chief Financial Officer, whose incumbent announced his retirement around the time of the acquisition. [Doc. No. 128-6], Deposition of Alison Harbrecht, 176:8-11. There is no evidence that Harbrecht identified, considered, or interviewed Loose for any of these positions.

         On April 3, 2018, GDC's acquisition of CSRA closed. On April 6, 2018, Keffer, Loose's manager and Harbrecht's counterpart within CSRA, was terminated.

         On April 6, 2018, Loose informed Harbrecht that the CSRA Treasury department was working to migrate Treasury tasks to the GDC Treasury department, but Loose had identified "a number of tasks which [Loose's] team does routinely, which are not replicated in the [GDC] Corporate treasury; so [Loose] assume[d] that these functions [would] be carried out at GDIT." SUMF ¶ 42; Disputed Facts ¶ 42. He asked Harbrecht to identify a GDIT resource to whom Loose's team could over turn their tasks before they were released in early May. SUMF ¶ 42. Harbrecht identified XXXXX, GDIT's then-existing Senior Manager of Finance, who was three levels below Harbrecht, and whose job was materially different from that of a Corporate Treasurer.[4] Although Loose was communicating with Harbrecht during this period, Loose never meet with Harbrecht in person, never forwarded his resume to her, never discussed with her whether there were any openings that he might fill, never asked her to be considered for any of the direct report or other GDIT positions, and never said to her that he was interested in being considered for a job within GDIT. SUMF ¶ 36; Disputed Facts ¶ 36.

         Also on April 6, 2018, Loose met with Harbrecht in person for the first time to discuss corporate integration work. SUMF ¶ 36; [Doc. No. 128-40]. At no time, including during this meeting, did Loose inform Harbrecht that he was interested in a non-Treasury role at GDIT. SUMF ¶ 36.

         On April 9, 2018, Loose learned that his last day would be May 4, 2018. SUMF ¶ 17.

         On May 22, 2018, 18 days after his employment ended, Loose applied for the open position of GDIT Intel Division's Chief Financial Officer through the external, public website on which the job opening was posted. SUMF ¶ 50. For that position, Harbrecht decided to interview only "internal candidates," that is, those candidates who were already employed within the GDC family of companies. SUMF ¶ 48. Because Loose's employment had terminated on May 4, 2018, Recruiter Colleen Nicoll, who processed his application and did not know Loose, treated Loose at that point as an "external candidate" and did not pass his resume on to Harbrecht. There is no evidence that Harbrecht saw Loose's application or considered him for this CFO position. SUMF ¶ 50-52.[5] Harbrecht hired an internal candidate, XXXXX who was XXXXX years old and with whom she had previously worked at GDC Mission Systems, another GDC company. SUMF ¶ 54.

         On September 12, 2018, Loose filed a Charge of Discrimination with the Equal Employment Opportunity Commission, and he filed this action on April 18, 2019.


         Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a properly supported motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 247-48 ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."). Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007). However, "[m]ere unsupported speculation is not sufficient to defeat a summary judgment motion." Francis v. Booz Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006). "Conclusory assertions that [a decisionmaker's] state of mind and motivation are in dispute are not enough to withstand summary judgment." Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). Additionally, factual disputes are not demonstrated through "mere speculation or the building of one inference upon another." Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 320 (4th Cir. 2012) (quoting Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008)).

         III. ANALYSIS[6]

         Loose contends in Count I that CSRA terminated him because of his age; and in Count II, that GDIT failed to hire him because of his age, first, before his termination, for any of the six "direct reports" to Harbrecht, and then, after his termination, for the job of GDIT Intel Division's Chief Financial Officer.

         A. Count I: Discriminatory Termination (against CSRA)

         The ADEA prohibits employers from taking an adverse action against an employee who is at least 40 years of age "because of the person's age. 29 U.S.C. §§ 623(a)(1), 631(a). Loose alleges that he was discriminated against on the basis of his age when he was terminated from his position at CSRA, effective May 4, 2018. To prevail on his ADEA claim, Loose must show, inter alia, that age was the "but for" cause of his termination. Harris v. Powhatan Cty. Sch. Bd., 543 Fed.Appx. 343, 346 (4th Cir. 2013) (citing Gross v. FBI Fin. Serv., Inc., 557 U.S. 167, 177 (2009).

         i. Prima Facie

         Case To establish a prima facie case of discriminatory termination based on age, Loose must show: (1) he is over 40 years old; (2) he was terminated; (3) he was performing his job duties at a level that met the employer's legitimate expectations; and (4) his position remained open or was filled by a similarly qualified, substantially younger applicant. Baqir v. Principi, 434 F.3d 733, 742 (4th Cir. 2006); see also O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 301-12 (1996). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Spruill v. Kip Killmon's Tysons Ford, Inc., No. 1:12-cv-806, 2012 WL 4829339, at *4 (E.D. Va. Oct. 10, 2012). If the defendant satisfies its burden of production, "the plaintiff is afforded the 'opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were pretext for discrimination.'" Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646 (4th Cir. 2002) (quoting Texas Dep't Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

         To satisfy the fourth element of the prima facie case for discriminatory termination, the position from which a plaintiff was terminated must have remained open or have been filled by a similarly qualified applicant outside the protected class. Baqir v. Principi,434 F.3d 733, 742 (4th Cir. 2006). Where a position has been eliminated, especially without proof of discriminatory reasons for eliminating the position, a plaintiff cannot satisfy the fourth element by merely disputing the reasons for the elimination. See Goode v. Central Virginia Legal Aid Soc, Civil Action No. 3:14-cv-281, 2014 WL 3945870, at *6 (E.D. Va. Aug. 12, 2014) (dismissing a complaint where the plaintiff "acknowledge[d] that his position and some of his job duties were eliminated [but disputed] the reasoning as to both" as failing to satisfy the fourth prong of the prima facie case). Additionally, a plaintiff is not "replaced" in his position where some of his former duties were reassigned to other employees. Rush v. ...

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